U.S. Supreme Court Chief Justice John Roberts was once the darling of conservative activists. These days, after casting two votes that saved the Affordable Care Act, he’s the bane of many. But Roberts is no liberal. He voted, after all, against gay marriage, against the Voting Rights Act and for the Citizens United campaign finance ruling that many on the left find onerous.
So how to explain John Roberts? Joel Mathis and Ben Boychuk debate the issue.
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Remember when John Roberts told us he would be an umpire, calling only “balls and strikes”? Turns out his strike zone is as slippery as any major leaguer’s.
Occasionally, that slipperiness ends up with a result to liberals’ liking – like the recent ruling that saved Obamacare. While conservatives howled at him, it seems clear that Roberts decided not to subvert the plain will of Congress over a pedantic bit of copyediting.
“Words have meaning,” Antonin Scalia sniffed afterwards, and it’s true, but words don’t have meaning apart from their context. Roberts recognized this, Scalia chose not to, and which seems like a wiser approach to you? The conservative ideal that the legislative branches are owed deference, though, was consistently upheld with Roberts’ vote in the case.
If only he stuck to the idea consistently. Some of the most notable rulings in his tenure – on Citizens United and, more bewilderingly, the Voting Rights Act – directly contravene the “defer to Congress” ideal.
Some of this is principled, perhaps, but some of it surely is not. While conservatives like to make a fetish of a consistent worldview that produces consistent outcomes, it turns out they are not mere law-reading robots, but humans, prone to inconsistency, whims, and the occasional thumb on the judicial scale. Scalia is (mostly) the rare exception, and it’s notable that he’s become most famous for his dissents from majority opinions.
I saw Roberts give a speech a few years ago on, of all things, the Louisiana Purchase. President Jefferson, Roberts suggested in the speech, might not have had the Constitutional authority to make that purchase...but it was a good thing that he did, anyway.
There’s a principle at work there, admittedly. It’s not one that conservative legal theorists like to admit to sharing. But Roberts is young, folks. We’ve got another 20 years to figure out what he really thinks.
Chief Justice Roberts is a contradiction. No, he is Humpty Dumpty. “When I use a word,” Humpty Dumpty told Alice in Lewis Carroll’s story, “it means just what I choose it to mean – neither more nor less.”
Roberts sits at the head of a court filled with Humpty Dumptys. With the notable exceptions of Clarence Thomas and Samuel Alito – whose jurisprudence is well articulated, generally consistent (at least to anyone who bothers to read them) and quite different from Roberts’ – these justices often use words to mean whatever suits them on a case-by-case basis.
So we saw the chief justice make one pronouncement on what the law is on a Thursday, and contradict himself the very next day.
“(T)his Court is not a legislature,” Roberts wrote in his dissenting opinion in Obergefell v. Hodges. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
Yes, precisely as Alexander Hamilton put it in Federalist 78 – a clear statement of the limits of judicial power that the High Court jettisoned 80 years ago.
And so behold Roberts in New Deal mode, writing for the five-justice majority in the Obamacare case just one day earlier: “Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”
Stated more simply, whether federally subsidized state health insurance exchanges are a good idea is of great concern to the court. Because thanks to decades of legislating from the bench, judges have the power to say what the law is as well as what it should be.
The people who ratified the Constitution may have authorized courts to exercise “neither force nor will but merely judgment,” but, hey – we’ve come a long way, baby.
Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Joel Mathis is associate editor for Philadelphia Magazine.